Impact Litigation Journalhttp://www.impactlitigation.com
Observations and asides about California representative actions and other complex litigationTue, 28 Jul 2015 22:37:15 +0000enhourly1http://wordpress.org/?v=Uber Driver is an Employee, California Labor Commission Ruleshttp://www.impactlitigation.com/2015/07/28/uber-driver-is-an-employee-california-labor-commission-rules/
http://www.impactlitigation.com/2015/07/28/uber-driver-is-an-employee-california-labor-commission-rules/#commentsTue, 28 Jul 2015 22:37:15 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3613In a decision that could have reverberating effects in the so-called “sharing economy,” the California Labor Commission recently ruled that a driver for Uber Technologies, Inc. is an employee and not an independent contractor.

Hearing Officer Stephanie Barrett’s decision, issued on June 3, 2015, ordered Uber to reimburse Barbara Ann Berwick more than $4,000 (including interest) for mileage and other expenses incurred during her stint as an Uber driver last year. Rejecting Uber’s argument that the company is “nothing more than a neutral technological platform, designed simply to enable drivers and passengers to transact the business of transportation,” the Commissioner held that Uber is “involved in every aspect of the operation” and exercises significant control over drivers. See Order, Decision or Award of the Labor Commissioner, Berwick v. Uber Technologies, Inc., Case No. 11-46739 (June 3, 2015) (available here). The ruling was made public after Uber filed an appeal to the Labor Commissioner’s order in the San Francisco County Superior Court (available here).

Applying the 11-factor test enumerated by the California Supreme Court in S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations, 48 Cal. 3d 341 (1989), the Commissioner found that Uber retained “all necessary control over the operation as a whole,” which was an overriding factor that established the existence of an employee-employer relationship. See Order at 8. The Commissioner also emphasized that the work done by drivers was “an integral part of the regular business” of Uber and that “[w]ithout drivers such as [Berwick], [Uber’s] business would not exist.” Id.

Although the Berwick decision is purely administrative, it may have significant implications for Uber’s labor model, which continues to utilize independent contractors as drivers. Given the Commissioner’s findings that Uber is “in business to provide transportation services to passengers,” and that drivers for Uber do “the actual transporting of those passengers,” Order at 8, it appears that Uber’s primary arguments regarding its role as a “mere platform” rather than an employer will not succeed in any future litigation. Such findings will likely have a lasting impact on businesses providing passenger transportation services that use an independent contractor labor model.

The debate over employee classification is likely to escalate as the sharing economy continues to grow exponentially, with the majority of such companies classifying workers as independent contractors—exempt from many wage-and-hour laws and protections—rather than employees. So long as these companies continue to classify workers as independent contractors, they risk facing misclassification claims, a growing trend in class action litigation nationwide.

Authored by: Suzy Lee, AssociateCAPSTONE LAW APC

]]>http://www.impactlitigation.com/2015/07/28/uber-driver-is-an-employee-california-labor-commission-rules/feed/0Federal District Court Approves $40 Million Data-Throttling Settlementhttp://www.impactlitigation.com/2015/07/21/federal-district-court-approves-40-million-data-throttling-settlement/
http://www.impactlitigation.com/2015/07/21/federal-district-court-approves-40-million-data-throttling-settlement/#commentsTue, 21 Jul 2015 23:03:58 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3600On July 2, 2015, Judge Edward M. Chen of the Northern District of California granted final approval of a $40 million settlement reached between the Federal Trade Commission (“FTC”) and TracFone Wireless, Inc., d/b/a Straight Talk Wireless, Net10 Wireless, Simple Mobile, and TelCel America (“TracFone”). See In Re TracFone Unlimited Service Plan Litig., No. 13-3440 (N.D. Cal. July 2, 2015) (Order Granting Motion for Final Approval of Class Action Settlement and Granting for Award of Attorneys’ Fees, Costs, and Representative Service Awards) (available here). Class members alleged that TracFone advertised and sold “unlimited” data plans that, in reality, were quite the opposite. TracFone admitted to slowing down (aka “throttling”) or suspending its customers’ data service, and sometimes terminating customers’ cellular service entirely, when those customers exceeded a monthly data usage cap set by TracFone. TracFone did not disclose the data usage cap and subsequent data interference to class members prior to their purchase of “unlimited” data plans.

The settlement provides for the disbursement of $40 million paid by TracFone to the class members in varying amounts based on the timing and level of data interference. Additionally, the court granted injunctive relief to the class, whereby TracFone must disclose “throttle limits or caps, as well as the actual speeds to which customer data will be slowed” alongside any “unlimited data” advertisements and implement a system to notify customers by SMS text message when they reach the data usage cap. Order at 13.

Judge Chen approved the settlement after considering the factors set forth in In Re Bluetooth Headset Prods. Liab. Litig., including:

(1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a governmental participant; and (8) the reaction of the class members of the proposed settlement. In Re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 943 (9th Cir. 2011) (citing Churchill Village, L.L.C. v. Gen. Elec., citations omitted).

The court concluded that the terms were fair to both class members and TracFone, noting that TracFone had strong defenses if the case went to trial. The FTC has propounded similar claims against AT&T. See Fed. Trade Commission v. AT&T Mobility LLC, No. C-14-4785 EMC (N.D. Cal. Oct. 28, 2014).

Authored by: Trisha Monesi, AssociateCAPSTONE LAW APC

]]>http://www.impactlitigation.com/2015/07/21/federal-district-court-approves-40-million-data-throttling-settlement/feed/0Disney Reaches Vacation Pay Settlement with Former Employeeshttp://www.impactlitigation.com/2015/07/14/disney-reaches-vacation-pay-settlement-with-former-employees/
http://www.impactlitigation.com/2015/07/14/disney-reaches-vacation-pay-settlement-with-former-employees/#commentsTue, 14 Jul 2015 22:15:56 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3595A settlement was reached last week in Zorio v. Walt Disney Worldwide Services Inc., a case brought by former Disneyland employee Reykeel Zorio, who alleged on behalf of himself and other former employees at six Disney facilities that Disney failed to compensate departing employees for accrued vacation time. See Zorio v. Walt Disney Worldwide Services Inc., No. BC549292 (Los Angeles Cty. Sup. Ct. 2014, consolidated with No. BC540154). Originally filed in March 2014 as a representative action, the claims relating to vacation wages were filed again in June 2014 as a class action. The cases were subsequently consolidated and alleged that the defendants in the action failed to provide earned and vested vacation wages within any permissible time period to employees upon termination or separation.

The proposed settlement will reportedly pay $500,000 to more than 4,000 hourly-paid, non-exempt workers. The decision helps to reinforce the principle that paid vacation is a form of wages, earned as labor is performed, and is therefore compensable upon termination of employment pursuant to California Labor Code section 227.3, as well as sections 201-204.

While an employer is not required to provide its employees with vacation time, California law imposes restrictions on any policy, practice, or agreement implemented to provide paid vacation, and accrued vacation time is considered wages. See Suastez v. Plastic Dress-up Co., 31 Cal. 3d 774 (1982). An employee has no entitlement to be paid for accrued but unused vacation until the employee quits or is discharged. However, all earned and unused vacation must be paid to the employee at his or her final rate of pay within three days of termination of employment. Cal. Lab. Code § 227.3. The Disney Corporation learned this rule the hard way in Zorio.

Authored by: Karen Wallace, AssociateCAPSTONE LAW APC

]]>http://www.impactlitigation.com/2015/07/14/disney-reaches-vacation-pay-settlement-with-former-employees/feed/0Department of Labor Works Overtime to Draft New Exemption Ruleshttp://www.impactlitigation.com/2015/07/07/department-of-labor-works-overtime-to-draft-new-exemption-rules/
http://www.impactlitigation.com/2015/07/07/department-of-labor-works-overtime-to-draft-new-exemption-rules/#commentsTue, 07 Jul 2015 23:48:47 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3591It looks like President Barack Obama would like to add overtime reform to his growing list of second-term accomplishments. Last week, in response to a March 2014 memorandum issued by the President, the Wage & Hour Division of the U.S. Department of Labor (“DOL”) made public a proposal that would broaden federal overtime pay regulations to include millions of additional workers and make it more difficult for employers to classify employees as exempt under the Fair Labor Standards Act’s “white collar” overtime exemption (29 CFR Part 541).

As the regulations stand now, employees are generally exempt from overtime pay if they perform certain types of work (i.e., executive, administrative, professional, outside sales, and/or IT) and receive a minimum annual salary of $23,660. Under the proposed rule, this salary floor would more than double in 2016—to $50,440—and be indexed to inflation on an annual basis. The current salary threshold was last updated in 2004.

The proposal is expected to be published in the Federal Register this week, which will be followed by a 60-day comment period. The DOL is specifically seeking input as to whether changes should be made to any of the job duty tests, and suggests the possibility of adopting the California rule (where a worker has to spend at least 50 percent of their time on exempt duties in order to be exempt from overtime) as the new federal standard.

]]>http://www.impactlitigation.com/2015/07/07/department-of-labor-works-overtime-to-draft-new-exemption-rules/feed/0Settlement Delivers $228M to FedEx Drivershttp://www.impactlitigation.com/2015/06/29/settlement-delivers-228m-to-fedex-drivers/
http://www.impactlitigation.com/2015/06/29/settlement-delivers-228m-to-fedex-drivers/#commentsTue, 30 Jun 2015 02:51:44 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3580After over 10 years of litigation, a settlement has finally been proposed in a case alleging that FedEx misclassified more than 2,300 California truck drivers who worked for the company between 2000 and 2007. The drivers’ complaint alleged that they were classified as independent contractors, rather than employees; the latter would afford the drivers certain protections such as overtime pay, reimbursement for certain business expenses, and meal and rest periods.

The settlement follows a 2014 order from the Ninth Circuit overturning a lower court’s denial of the plaintiffs’ motion for partial summary judgment on the question of whether they were improperly classified as independent contractors. Alexander v. FedEx Ground Package Sys., 765 F.3d 981 (9th Cir. 2014) (available here) (previously covered by the ILJ here). In Alexander, the Ninth Circuit evaluated a number of different factors under California’s right-to-control test, which courts use to determine whether a company has the right to control the manner and means of its employees’ work. Id. at 988. The Alexander court found that FedEx mandated workers’ clothing “from their hats down to their shoes and socks,” and also required drivers to adhere to a specific work schedule, both of which exemplify a company’s control over the manner and means of the work performed. Id. at 990. As such, the Ninth Circuit determined that “FedEx [had] a broad right to control the manner in which its drivers perform their work,” and that the FedEx truck drivers were employees as a matter of law. Id. at 997.

The proposed settlement will require approval of a California federal judge. If approval is granted, it will finally resolve the claims of the 2,300 FedEx truck drivers misclassified as independent contractors.

Authored by: Bevin Allen Pike, Senior CounselCAPSTONE LAW APC

]]>http://www.impactlitigation.com/2015/06/29/settlement-delivers-228m-to-fedex-drivers/feed/0California Court of Appeal: PacPizza Can’t Deliver on Arbitration Bidhttp://www.impactlitigation.com/2015/06/23/california-court-of-appeal-pacpizza-can%e2%80%99t-deliver-on-arbitration-bid/
http://www.impactlitigation.com/2015/06/23/california-court-of-appeal-pacpizza-can%e2%80%99t-deliver-on-arbitration-bid/#commentsTue, 23 Jun 2015 23:13:40 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3572On May 1, 2015, the California Court of Appeal, First Appellate District, affirmed a Contra Costa County Superior Court decision denying a defendant pizza restaurant’s motion to compel arbitration in a wage-and-hour class action brought by former employees. Both the trial and appellate courts found that PacPizza had waived its right to arbitration by engaging in extensive litigation for many months before filing the motion to compel. The appellate court’s opinion was certified for publication on June 1, 2015. See Oregel v. PacPizza, LLC, No. A141947 (Cal. Ct. App. May 1, 2015) (slip opinion available here).

Oregel demonstrates what not to do as a defendant that wishes to enforce an arbitration clause. As noted by the Court of Appeal, PacPizza answered two class complaints, attended two case management conferences, negotiated a briefing schedule on a motion for class certification, and propounded and responded to extensive discovery, which included admissions that an arbitration agreement did exist—all without indicating any intent to enforce an arbitration agreement. PacPizza’s motion to compel arbitration was not filed until after the plaintiff’s motion for class certification had been filed, seventeen months after the initial complaint.

Relying heavily on St. Agnes Med. Ctr. v. PacifiCare of California, 31 Cal. 4th 1187 (2003), the trial court and court of appeal found that PacPizza had waived its right to arbitration by: (1) acting inconsistently with that right when continuing with the litigation; (2) engaging in discovery and progressing well into the class certification preparation and briefing stage without indicating an intent to arbitrate; (3) requesting arbitration enforcement only after a long delay; (4) taking advantage of judicial discovery and participating in other procedures not available in arbitration; and (5) affecting, misleading, and prejudicing the opposing party with the delay. Only one St. Agnes factor, regarding cross-complaints, did not affirmatively favor a finding of waiver. Both courts also noted that PacPizza’s delay may have been a strategic ploy to attempt arbitration only if the plaintiff’s class certification motion seemed likely to be granted (the proposed class was later certified by the trial court). As one may expect, this gamesmanship displeased both courts.

Oregel is not a close case of waiver. Rather, it occupies the extreme end of the spectrum where a defendant has engaged in extensive judicial litigation prior to seeking to compel arbitration, which clearly amounts to waiver. Oregel thus joins a growing collection of cases wherein defendants have essentially forfeited their rights to compel arbitration by not doing so soon enough, creating additional work and expense for all involved. This type of dilatory conduct results in waiver because it undermines the traditional policy justifications for contractual arbitration, which are that it saves time and money.

Authored by: Jonathan Lee, AssociateCAPSTONE LAW APC

]]>http://www.impactlitigation.com/2015/06/23/california-court-of-appeal-pacpizza-can%e2%80%99t-deliver-on-arbitration-bid/feed/0Iskanian PAGA Ruling Stands; U.S. Supreme Court Denies Cert. in Bridgestonehttp://www.impactlitigation.com/2015/06/16/iskanian-paga-ruling-stands-u-s-supreme-court-denies-cert-in-bridgestone/
http://www.impactlitigation.com/2015/06/16/iskanian-paga-ruling-stands-u-s-supreme-court-denies-cert-in-bridgestone/#commentsTue, 16 Jun 2015 19:32:47 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3564On Monday, June 1, 2015, the U.S. Supreme Court denied the defendant’s petition for a writ of certiorari in Brown, et al. v. Bridgestone Retail Operations, LLC, a wage-and-hour class action involving the enforceability of waivers of Private Attorneys General Act of 2004 (PAGA) claims—the same issues litigated in Iskanian v. CLS Transportation Los Angeles, 59 Cal. 4th 348 (2014). See Brown, 331 P.3d 1274 (Aug. 27, 2014) (cert. denied by Bridgestone Retail Operations, LLC v. Brown, et al., 2015 U.S. LEXIS 3644 (U.S. June 1, 2015)) (Mr. Brown is represented by Capstone Law APC). In Iskanian, the California Supreme Court held that an arbitration agreement purporting to waive the employee’s right to bring representative claims under PAGA is invalid under California law, and that California’s rule against PAGA enforcement action waivers is not preempted by the Federal Arbitration Act (FAA). In January 2015, the Supreme Court of the United States denied CLS’s petition for writ of certiorari.

Initially, in June 2013, the California Court of Appeal upheld a class action waiver in Brown, finding that the employers’ delay in compelling arbitration had not resulted in a waiver of their right to arbitrate, but found the representative action waiver unenforceable as a violation of public policy. Brown, 216 Cal. App. 4th 1302. The court directed the trial court to vacate its order and enter a new order granting the motion to compel arbitration with respect to all except the PAGA claim, and stay the action pending the arbitration. Id. The California Supreme Court then granted the plaintiffs’ petition for review in September 2013, putting on hold further action in Brown pending Iskanian. 307 P.3d 877. Following Iskanian, the California Supreme Court transferred Bridgestone back to the Court of Appeal with directions to vacate the latter’s prior decision and reconsider the cause in light of the Supreme Court’s holding in Iskanian. The Court of Appeal then issued a writ of mandate directing the superior court to vacate its order granting defendant’s motion to compel arbitration and for a stay.

By denying certiorari in Bridgestone, the U.S. Supreme Court leaves intact the California high court’s Iskanian decision requiring that representative actions brought under the PAGA proceed on a representative basis in some forum, whether it be court or in arbitration.

In In re Yahoo Mail Litig., the class claims were limited to injunctive and declaratory relief, and the plaintiffs strategically did not seek statutory damages. Judge Koh certified a nationwide class under the Stored Communications Act (“SCA”) and a California-only class under the California Invasion of Privacy Act (“CIPA”). The certification of the two classes involved the intersection of three current, hot-button issues: (1) electronic online data mining; (2) Article III standing; and (3) ascertainability. In particular, Judge Koh’s straightforward, commonsense analysis of Article III standing is instructive for its clarity and reasoning.

Whether a plaintiff has Article III standing to pursue injunctive relief after gaining knowledge of a defendant’s wrongdoing was a pivotal question in this case. Yahoo argued that the plaintiffs’ continued email interaction with Yahoo subscribers after they learned of Yahoo’s data collection practices forecloses their standing to pursue injunctive relief, since these continued interactions constituted consent to Yahoo’s policies. As a result, the class members would be unable to show a likelihood of being injured in the future. See Order at 10. However, the court simply rejected this argument. Id.

According to Yahoo, the plaintiffs would be required to cease emailing Yahoo users in order to preserve their claims and to avoid consenting to Yahoo’s data mining, yet they would need to continue communicating with Yahoo users’ accounts in order to demonstrate a threat of future injury. Judge Koh found that, because a showing of a likelihood of future injury is required to pursue injunctive relief, Yahoo’s rationale “would put Plaintiffs in a catch-22 that would essentially preclude injunctive relief altogether.” Id. at 14.

While other courts have landed on the less-desirable end of the issue, Judge Koh’s ruling signals that Yahoo’s interpretation of Article III standing should be rejected for being overly narrow in the consumer protection context, which is welcome news for California consumers. See id. at 12.

Authored by: Tarek Zohdy, AssociateCAPSTONE LAW APC

]]>http://www.impactlitigation.com/2015/06/08/in-re-yahoo-mail-litig-court-rejects-defendant%e2%80%99s-catch-22-argument-re-article-iii-standing/feed/0Revamped Home Depot Settlement Passes Inspectionhttp://www.impactlitigation.com/2015/06/02/revamped-home-depot-settlement-passes-inspection/
http://www.impactlitigation.com/2015/06/02/revamped-home-depot-settlement-passes-inspection/#commentsWed, 03 Jun 2015 02:04:52 +0000robin.hall@capstonelawyers.comhttp://www.impactlitigation.com/?p=3538On May 20, 2015, the United States District Court for the Northern District of California granted final approval of a $1.5 million wage-and-hour class action settlement in Barrera v. Home Depot USA, Inc., No. 5:12-cv-5199 (N.D. Cal. May 20, 2015). See Order Granting Final Approval here, Amended Settlement Agreementhere. Judge Lucy H. Koh gave her blessing to a revised settlement just over a year after denying preliminary approval of the parties’ original settlement agreement. See Order Denying Preliminary Approval here.

At the core of this case are penalties under California Labor Code § 203, which provides for the continuation of wages for terminated employees for up to 30 days when employers willfully fail to pay timely final wages. The Barrera plaintiffs contend that Home Depot delayed payments of final wages to fired workers between September 2009 and September 2014, in violation of Labor Code § 201. In her May 6, 2014 order denying preliminary approval, Judge Koh observed that, during the class period, Home Depot failed to pay 6,648 fired employees their final wages on the date of termination, as California law requires. Further, only 66% of those 6,648 employees were paid final wages within three days of their terminations, and only 75% of them were paid within seven days. The plaintiffs’ counsel calculated the average hourly wage at $10-13 per hour and the average daily wage rate at $100-$150. The plaintiffs also estimated, based on actual data provided by Home Depot, that Home Depot’s total exposure was $3,573,519. The initial settlement provided for a settlement fund of $1.4 million.

Judge Koh noted two problems with the initial settlement that prevented her from granting preliminary approval. First, although $945,000 of the settlement fund was made available to class members, the funds were to be distributed on a claims-made basis, with a provision obligating Home Depot to pay at least 50% of those funds. Judge Koh ruled that the provision was not fair and adequate to class members because it disincentivized parties from maximizing participation. In fact, because the plaintiffs’ counsel would request 25% of the total settlement fund regardless of the participation rate, the settlement’s structure set the stage for a potential conflict of interests, whereby the plaintiffs’ counsel could bargain with a defendant for a lowered minimum payment obligation in return for a higher settlement fund and—as a result—a higher potential fee award. Judge Koh pointedly ruled that “[s]uch settlement structures may artificially inflate the total settlement fund and render the total settlement fund illusory in order to justify a higher attorney’s fees award.” See Order Denying Preliminary Approval, at 3. Second, the settlement provided for a 60-day claim submission deadline that would not be extended, even if the initial class notice was returned as undeliverable. The court ruled that the provision was “not conducive to maximizing class members’ participation in the settlement.” Id.

On January 15, 2015, the parties moved for final approval of a revised settlement. The revised settlement contained four major changes: (1) it increased the gross settlement amount from $1.4 million to $1.5 million; (2) it eliminated both the claims process and the reversion provision for unclaimed funds (instead designating two cy pres recipients); (3) it extended the time frame to object or opt out from 60 to 90 days; and (4) it provided each class member with an estimate of damages and the formula used to calculate the pro rata payment with the class notice. With these adjustments, the court approved the revised settlement.

The takeaway from the case history is that judges typically look harder at claims-made settlements, and even more so when they contain a relatively low minimum payment provision coupled with a reversion to the defendant. Courts will always be concerned about whether class counsel is truly maximizing the benefit to the class or is merely settling to secure a fee award. To maximize the settlement benefits to the class members, and thereby avoid having preliminary approval denied, the optimal course of action is to negotiate a direct distribution (i.e., no claims process) to the class members with no reversion, as the parties did in their revised settlement. In the alternative, one might provide for a claims-made settlement that includes a high minimum payment amount either with or without a reversion, preferably without. In such cases, those class members who expend the time and effort to submit claim forms will be rewarded with significant benefits from the settlement.

As previously covered by the ILJhere, the California Court of Appeal, Second Appellate District, had affirmed the trial court’s certification of a class of security guards, but reversed the summary judgment and summary adjudication granted for rest break violations under the California Labor Code. Augustus v. ABM Security Services, Inc., 233 Cal. App. 4th 1065 (Cal. Ct. App. Dec. 31, 2014) (available here). In doing so, the Court of Appeal rejected the trial court’s view that an “on-call” rest break where an employee must respond to emergencies and calls is not a legally-compliant rest break under Industrial Welfare Commission (“IWC”) Wage Order No. 4. The Court of Appeal found that remaining available to work during a rest break “is not the same as performing work,” since the guards were freed from most of their work responsibilities during their rest breaks. Id. at 1082. This is a stark departure from previous Division of Labor Standards Enforcement (“DLSE”) opinion letters, the California Supreme Court’s previous definition of “work” under Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000), the California Supreme Court’s analysis of “providing” meal breaks in Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012), and the California Supreme Court’s analysis of “on-call time” in Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015).

The granting of the petition for review is significant for two reasons. First, pursuant to California Rules of Court 8.1105(e) and 8.1115, the Augustus decision is now depublished, so employers can no longer cite the Court of Appeal ruling as a basis for dismissing rest break claims in which the employee was “on-call” or otherwise subject to the employer’s control. Second, given the recent California Supreme Court decisions in this area, there is a significant likelihood that it will finally put to rest the argument that employers can continue to maintain control over employees during rest breaks merely because they remain on the clock during this time.

This is expected to be a closely-watched case by both the plaintiffs’ bar and defense counsel, as it implicates substantive wage-and-hour law.